Com. v. Gergerich, B. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRUCE GERGERICH,
Appellant No. 1129 WDA 2015
Appeal from the Judgment of Sentence Entered December 19, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013138-2012
BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 09, 2016
Appellant, Bruce Gergerich, appeals nunc pro tunc from the judgment
of sentence of 18 to 36 months’ imprisonment, followed by 5 years’
probation, imposed after he was convicted of one count of possession of a
controlled substance, 35 P.S. § 780-113(a)(16), and two counts of
possession with intent to deliver a controlled substance, 35 P.S. § 780-
113(a)(30). Appellant solely challenges the trial court’s denial of his pretrial
motion to suppress evidence. After careful review, we affirm.
Appellant was charged with the above stated offenses in 2012. Prior
to his trial, Appellant filed a motion to suppress drug evidence recovered
from his person after he was stopped and frisked by police. A suppression
hearing was conducted on May 14, 2013, at the close of which the court
denied Appellant’s suppression motion. Appellant’s case immediately
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proceeded to a non-jury trial and the court convicted Appellant of the three
counts with which he was charged. Appellant was initially sentenced on
August 8, 2013, but he was subsequently resentenced on December 19,
2013, to the aggregate term stated supra.
Appellant did not file a post-sentence motion or a direct appeal.
However, on August 26, 2014, he filed a petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the restoration of his
direct appeal rights. The PCRA court granted Appellant’s petition on June
22, 2015, and Appellant filed this nunc pro tunc appeal on July 22, 2015.
Appellant also timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and the court
filed an opinion on February 11, 2016. Herein, Appellant presents the
following issue for our review:
I. Did the court err when it did not grant the suppression motion
when the search and seizure of [Appellant] was illegal and
without probable cause in that the police officer, while sitting
100 feet from him, did not witness any illegal activity or that
[Appellant] had committed any crimes, in that the police only
witnessed two men in a car, shaking hands?
Appellant’s Brief at 4.
It is well-settled that,
[o]ur standard of review in addressing a challenge to the denial
of a suppression motion is limited to determining whether the
suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
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as a whole. Where the suppression court's factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court's legal conclusions are erroneous.
Where … the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression court's
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012)
(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.
2012) (citation omitted)).
Briefly, Appellant challenges the legality of his stop by police, as well
as the lawfulness of a pat-down search that was subsequently conducted,
during which narcotics were discovered. After reviewing the record, and for
the reasons stated infra, we disagree with Appellant that his stop or pat-
down were illegal.
At the suppression hearing, the Commonwealth presented the
testimony of Robinson Township Police Officers Jason Dilanni and Noel
Pilewski. Officer Pilewski testified that on July 30, 2012, at approximately
7:40 p.m., he was patrolling an area known to be a “high drug and crime
area.” N.T. Hearing, 5/14/13, at 19. Officer Pilewski was sitting in his
parked vehicle when he observed Appellant coming out of a hotel. Id. The
officer testified that he knew Appellant, and knew that Appellant lived at the
hotel, based on the officer’s previous “encounters where [Appellant had]
overdosed in his hotel room.” Id. at 20. Officer Pilewski watched as
Appellant walked “towards Route 60. He was on his cell phone and [he was]
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heading … southbound on Route 60.” Id. Officer Pilewski testified that he
called Officer Dilanni, who was also patrolling close by, and advised Officer
Dilanni of his “experience with [Appellant] and what [Officer Pilewski] knew
about [Appellant]….” Id. at 21. Officer Pilewski suggested that Officer
Dilanni “keep an eye” on Appellant. Id.
Officer Dilanni testified that after getting the call from Officer Pilewski,
he spotted Appellant and “watched him for a few moments[,]” after which
the officer saw “a green Grand A[m] pull[] up with two people” inside. Id.
at 12. Appellant “entered the passenger’s side of the vehicle and sat there
for a moment and it appeared some things were exchanged.” Id. Officer
Dilanni elaborated that Appellant and one of the individuals in the car
engaged in “sort of like a handshake but it looked like there was something
being passed.” Id. Appellant then exited the vehicle. Id. Officer Dilanni
testified that he made his observations from “[a]bout 100 feet” away from
the green Grand Am. Id. at 13. Officer Dilanni decided to stop that vehicle.
Id.
Meanwhile, Officer Pilewski saw Appellant walking back towards him.
Id. Just then, Officer Dilanni called Officer Pilewski “and advised [Officer
Pilewski] what he witnessed[,]” and that Officer Dilanni “was stopping the
vehicle.” Id. at 21. Officer Pilewski decided to also stop Appellant. Id. at
22. The officer “advised [Appellant] why he was being stopped and [that the
officer] believed criminal activity had taken place.” Id. Officer Pilewski
testified that Appellant “denied any wrongdoing.” Id. However, when
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Officer Dilanni stopped the green Grand Am, the driver, Richard Connors,
admitted to Officer Dilanni that “he had pills” and that he had obtained those
drugs from Appellant. Id. at 14. Officer Dilanni “relay[ed] that information
to Officer Pilewski.” Id. at 15.
Officer Pilewski testified that after detaining Appellant for “two or three
minutes[,]” he was notified by Officer Dilanni about Connors’ admission. Id.
at 23. Officer Pilewski then told Appellant that his and Connors’ “stories
weren’t matching up and [informed Appellant about] what [] Connors had
said.” Id. The officer asked Appellant if he could search Appellant’s person.
Id. at 23. Officer Pilewski testified that Appellant consented to the search,
at which point the officer patted-down Appellant’s person. Id. During the
pat-down, the officer found “two pill bottles with [Appellant’s] name for
Vicodin and Percocet.” Id. at 24. The pills were compared to pills that had
been seized from Connors, and they “appeared to be the same pills.” Id. at
24. Appellant was then placed under arrest. Id.
Again, Appellant challenges the legality of Officer Pilewski’s stop,
arguing that it was an investigative detention that was not supported by
reasonable suspicion. See Appellant’s Brief at 15. The trial court agreed
with Appellant that Officer Pilewski’s stop was a detention, and we see no
error in that determination. See Trial Court Opinion (TCO), 2/11/16, at 7.
Notably, at the time of the stop, Officer Pilewski informed Appellant that the
officer “believed criminal activity had taken place.” N.T. Hearing at 22. We
conclude that the officer’s statement was sufficient to express to Appellant
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“an official compulsion to stop and respond….” Commonwealth v. DeHart,
745 A.2d 633, 636 (Pa. Super. 2000) (citation omitted). Accordingly, we
agree with Appellant, and the trial court, that Officer Pilewski’s stop
constituted an investigative detention.
Therefore, we must next determine whether the trial court correctly
concluded that Officer Pilewski possessed reasonable suspicion to justify that
detention. See DeHart, 745 A.2d at 636 (stating that an investigative
detention “requires ‘reasonable suspicion’ of unlawful activity”) (citation
omitted).
In deciding whether reasonable suspicion exists for an
investigatory detention, the fundamental inquiry is an objective
one, namely, whether the facts available to the officer at the
moment of the intrusion warrant a man of reasonable caution in
the belief that the action taken was appropriate. This
assessment, like that applicable to the determination of probable
cause, requires an evaluation of the totality of the
circumstances, with a lesser showing needed to demonstrate
reasonable suspicion in terms of both quantity or content and
reliability. Among the factors to be considered in establishing a
basis for reasonable suspicion are tips, the reliability of the
informants, time, location, and suspicious activity, including
flight.
Commonwealth v. Gray, 784 A.2d 137, 142 (Pa. Super. 2001) (internal
citations omitted).
Here, we agree with the trial court that the totality of the
circumstances provided Officer Pilewski with reasonable suspicion that
Appellant was engaging in criminal activity. Namely, Officer Dilanni told
Officer Pilewski that Appellant had entered a vehicle for a brief period of
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time, during which Officer Dilanni saw Appellant and an occupant of the
vehicle pass something between them. Appellant’s conduct in the vehicle
was especially suspicious given Officer Pilewski’s knowledge of Appellant’s
history of drug use, and the high-drug area in which they were located. We
conclude that the totality of these circumstances justified Officer Pilewski’s
decision to stop Appellant for further investigation. See Commonwealth v.
Frank, 595 A.2d 1258, 1259-60 (Pa. Super. 1991) (finding reasonable
suspicion to justify an investigative detention where officers surveilling an
area known for drug activity saw a known drug dealer get into Frank’s car;
Frank and the dealer drove to another area where they met other men;
Frank exchanged unknown materials with one of the men; and Frank then
drove the drug dealer back to the place where the dealer had entered
Frank’s vehicle, after which Frank drove off).
Additionally, Officer Pilewski’s pat-down of Appellant’s person was not
illegal. The officer had only detained Appellant for “two or three minutes”
before receiving further information from Officer Dilanni that Connor had
admitted to obtaining drugs from Appellant. N.T. Hearing at 23. Officer
Pilewski then asked to search Appellant’s person and Appellant consented.
While Appellant claims that his consent was involuntary, the thrust of his
argument is premised on his claim that he was illegally stopped, which we
reject for the reasons stated supra. Moreover, Appellant misconstrues the
record when he argues that he simply ‘acquiesced’ to Officer Pilewski’s
statement that “he was about to search [Appellant].” Appellant’s Brief at
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12. Officer Pilewski testified at the suppression hearing that he asked
Appellant if he could search him. N.T. Hearing at 23. The Commonwealth
followed up that testimony by asking the officer, “[d]id you ask him
[whether you could pat him down] or did you tell him?” Id. Officer Pilewski
stated, “I asked him.” Id. According to Officer Pilewski, Appellant “said that
[was] fine,” and told the officer that he did not “have anything on [him] that
[was] not prescribed to [him].” Id. The officer then conducted the pat-
down. Id. Because the stop of Appellant was lawful, and he consented to
the pat-down, it was not illegal.
In any event, we also note that even if Appellant had not consented to
the pat-down, it was still legal. Connor’s admission to Officer Dilanni that
Appellant had given him drugs, which was relayed to Officer Pilewski prior to
the pat-down, provided Officer Pilewski with probable cause to arrest
Appellant. Thus, the officer was justified in searching Appellant. See
Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa. Super. 2002) (“[I]n all
cases of lawful arrests, police may fully search the person incident to the
arrest.”) (citations omitted).
For all of these reasons, the trial court did not err in denying
Appellant’s pretrial motion to suppress.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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